1st Am and intent to create a offensive environment/Red herri ngs

[Volokh, Eugene]

        A few thoughts about Hank's posts:

        (1)  It might be worth noting that the argument below applies
equally to hostile work environment law, hostile educational environment
law, and hostile public accommodations environment law.  If Hank's approach
is right, then this suggests that universities (public or private) not only
have the right to create speech codes -- and speech codes as broad as those
that employers are enacting to prevent hostile environment liability -- but
the *legal obligation* to do so; universities must punish racist,
religiously bigoted, sexist, anti-veteran, etc. speech by their students.
Likewise for places of public accommodation, which must punish such speech
by their patrons.  That seems an important implication to consider in
evaluating the analysis.

        (2)  While the speech that hostile environment law punishes is
characterized by the law as "discriminatory provision of terms, conditions,
or privileges of employment" (the term and condition being the work
environment, which the speech makes offensive), I'm not sure how far that
gets us.  Calling speech "intentional infliction of emotional distress"
(Hustler v. Falwell), "interference with business advantage" (NAACP v.
Claiborne Hardware), "breach of the peace" (Cohen v. California), "aiding
and abetting draft evasion" (Schenck, Debs, etc.) shouldn't strip it of 1st
Am protection; likewise when one calls speech "discriminatory provision of
terms, conditions, or privileges of employment."  See N.Y.T. v. Sullivan
("In deciding the question now, we are compelled by neither precedent nor
policy to give any more weight to the epithet 'libel' than we have to other
'mere labels' of state law.  Like insurrection, contempt, advocacy of
unlawful acts, breach of the peace, obscenity, solicitation of legal
business, and the various other formulae for the repression of expression
that have been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations.  It must be measured by standards
that satisfy the First Amendment.").

        (3)  The fact that the government is not directly prohibiting
speech, but making an employer liable for its employees' speech unless it
(the employer) prohibits the speech, can't affect the analysis, either.  The
government is imposing liability based on the content and the viewpoint of
speech -- true, it's drafting a private party to enforce this, but this is
still government-created speech suppression.

        I discuss this in much more detail at
http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#STATEACTION, but
surely we can all think of hypos that demonstrate this very point.  If the
government says "all universities that tolerate anti-veteran speech by their
students shall be liable in damages to veterans and dead veterans' relatives
for the offensive environment created by such speech," I take it that we'd
acknowledge that the government is restricting speech.  Likewise, if the
government says "all private employers who employ over 20% noncitizens shall
be legally liable," I take it that we'd acknowledge that the government is
responsible for the anti-alien discrimination, even though private employers
acting on their own could freely implement such a policy, and even though
the actual dismissal or failure to hire that's pressured by this policy will
be undertaken by the private employer.  (This is drawn from an actual case,
Truax v. Raich, 239 U.S. 33, 35 (1915).)

        There are lots of other examples one can give to demonstrate this
point:  The government may not avoid 1st Am constraints by pressuring
private parties to do that which the government may not (even if the private
parties could have done it had they been acting on their own).

        Eugene



> -----Original Message-----
> From: Chambers Jr, Henry L. [SMTP:ChambersH at MISSOURI.EDU]
> Sent: Wednesday, March 21, 2001 8:17 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: 1st Am and intent to create a offensive environment/Red
> herri ngs
>
> When commenting about workplace sexual harassment, we must first focus on
> the fact that Title VII is an employment/civil rights statute.  It is
> violated when the compensation, terms, conditions or privileges of
> employment are discriminatorily provided because of an employee's sex,
> race,
> etc.  Saying that a hostile work environment exists is a legal conclusion
> that necessarily encompasses the claim that an employee's compensation,
> terms, conditions or privileges of employment have been discriminatorily
> provided.
>
> The First Amendment claim against hostile work environment law, as I
> understand it, is that hostile work environment law requires that the
> employer restrict the statements of their employees or customers, etc.  It
> may be worthwhile to discuss the issues, but let's be clear, the
> government
> is not directly prohibiting the language.  Rather, it is telling the
> employer that it may face liability for providing terms of employment in a
> discriminatory manner based on sex.  If the discriminatory provision of
> terms occurs because of speech, so be it.
>
> -Hank
>
>
>
> Henry L. Chambers, Jr.
> Associate Professor of Law
> University of Missouri-Columbia
> chambersh at missouri.edu
> (573) 882-7562
>
>
>
>
        -----Original Message-----
        From:   Chambers Jr, Henry L. [SMTP:ChambersH at MISSOURI.EDU]
        Sent:   Wednesday, March 21, 2001 9:03 AM
        To:     CONLAWPROF at listserv.ucla.edu
        Subject:        Re: Anti-abortion exhibit as sexual harassment?

        The focus is not so much on the speech or conduct itself, but on the
        workplace atmosphere the speech helps creates.  The key is that the
        workplace atmosphere faced by the plaintiff be discriminatory, i.e.,
one in
        which the plaintiff has a more difficult time doing her job because
she is a
        woman.  Of course, the more derogatory and explicitly sexual the
speech or
        conduct is, the easier it will appear to help create a hostile work
        environment under Title VII.

        Consequently, an individual joke will not create a hostile work
environment.
        However, when the joke is combined with other jokes and hostile
comments and
        pin-ups, etc., a hostile work environment may be created.

        As Eugene has often and rightly noted, employers may seek to
prohibit all
        speech/conduct that might help create a hostile work environment
precisely
        because they do not know what mix of speech/conduct will suffice to
create a
        hostile work environment.  While that concerns me a little, I think
it
        concerns Eugene a lot. :-)

        -Hank

        Henry L. Chambers, Jr.
        Associate Professor of Law
        University of Missouri-Columbia
        chambersh at missouri.edu
        (573) 882-7562


        -----Original Message-----
        From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
        Sent: Wednesday, March 21, 2001 8:12 AM
        To: CONLAWPROF at listserv.ucla.edu
        Subject: Re: Anti-abortion exhibit as sexual harassment?


        I understand that speech can be "clearly hostile" to the point of
being
        "upsetting to the normal person" and that "no one likes running a
gauntlet
        of abuse in order to do their job." But I want to know what makes it
        *discriminatory*. People are nasty to one another for all kinds of
reasons.
        On the assumption that the background rule is that people are free
to
        express hostility and nastiness to one another (sticks and stones,
etc.),
        does this become a Title VII problem because: (1) the speaker is
motivated
        by animus against women (or whatever protected group we are talking
about)?
        (2) the victim's reaction is connected to being female (or whatever
the
        protected category is)? (3) the group to which the victim belongs is
"vastly
        outnumbered at work and there are lots of hostile fellow workers
making such
        remarks occasionally"? (4) the employer is selective in whom it
protects
        against such nastiness? Something else? Please allow me to repeat
that I am
        not making an argument, I am asking a question. I am not asking the
        normative question of what the law should be, or the constitutional
question
        of how the free speech clause applies, but the positive question of
what
        Title VII, as currently interpreted in actual practice, means.

        I am most interested in the situation in which workers are talking
to one
        another for their own amusement (for example, telling sexual jokes),
and a
        third party is offended, thinking that the jokes are sexist. Can
that be a
        Title VII violation?

        In case Marty Lederman is thinking of reposting his Oncale quote
again, let
        me assure him that I have read it, and think I understand it, but do
not
        believe that it reflects actual Title VII practice. If the quotation
from
        Oncale is controlling, then nasty speech is actionable only when it
is
        directed to the victim on account of the victim's sex, race, etc.
(my
        category (1) in the preceding paragraph). If taken seriously, that
would
        very substantially reduce the number of successfull harassment
complaints.
        Maybe that is right, but if so, the legal and employment world has
yet to
        notice it.

        Michael W. McConnell
        University of Utah College of Law
        332 S. 1400 East Room 102
        Salt Lake City, UT 84112

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